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Gov. Bill Richardson's ambitious proposal to provide health care coverage for every person in New Mexico sounds almost too good to be true.

Given the legal challenges to similar plans in other states, it just might be.

The Employee Retirement Income and Security Act — a 1974 federal mandate that bars states from requiring or regulating employer-provided benefits — is wreaking havoc with innovative efforts by states and cities to provide universal health care coverage.

In the opinion of some experts, New Mexico's plan could be the next to draw legal fire.

"ERISA says state law cannot affect an employee benefit plan and if it does, it's illegal," said Rob Schwartz, a University of New Mexico law professor. "It pre-empts states from doing much of anything."

Twenty-one states put forth health care bills in 2007, according to the National Conference of State Legislatures. Legislation is pending in most cases, but three plans signed into law have ended up in court over ERISA issues, most resulting in defeat.

Richardson's proposal — known as the HealthSolutions New Mexico Plan — requires employers to contribute to a Healthy New Mexico Workforce Fund, regardless of whether they offer health coverage to their employees.

A $500 annual fee per employee would be offset by the amount any employer already pays for its workers' health coverage.

Richardson's plan is structured somewhat differently from other plans that have met resistance — though that doesn't guarantee it clear legal sailing.

In January 2007, a Maryland law that charged employers a fee if they did not spend 8 percent of payroll on health care was deemed to violate federal law by the 4th U.S. Circuit Court of Appeals. The law was aimed at large retailers, essentially affecting only Wal-Mart.

A lower court in Suffolk County, N.Y., also struck down a law requiring very large employers to offer insurance or pay into a fund.

In San Francisco, a law requiring employers to contribute to cover the cost of the uninsured was struck down by a lower court in December. However, earlier this month an appeals court reversed the decision, allowing the plan to proceed and requiring employers to spend a minimum dollar amount per hour on health care for their employees.

All of which makes clear that nothing is clear when it comes to the conflict between the federal mandate and attempts to maneuver around it.

"I'm afraid the ERISA regulations will always be a black cloud hovering over any state effort to address health care, and that includes New Mexico's," said Joel Miller of the National Coalition on Health Care, a Washington, D.C., organization that promotes a federal solution to the health care crisis.

"The only way the states will get out from under this is if their laws are very comprehensive and the pain is spread out more and not just applied to employers," Miller said.

That is what Richardson's plan attempts to do, said state Secretary of Human Services Pam Hyde.

"We believe the way we've set it up is particularly designed to avoid ERISA challenges," she said.

The state consulted with ERISA experts before drawing up its proposal, Hyde said. They recommended the plan be as broad-based as possible, that it not require employers to change current coverage or choose a particular plan, and that any fee be minimal and contribute to the public good.

"We're doing exactly what they suggested," Hyde said. "As long as all employers are required to do it and do it consistently, we think we have the right to do that.

"It's a part of doing business in our state," she added. "We're asking them to contribute to the health of our work force."

Still, Hyde said the state can't dismiss the possibility of a legal wrangle ahead.

"As a friend of mine says, anybody can sue anybody for anything."

Schwartz, the UNM professor, said that because of the inconsistent judicial decisions thus far the ultimate decision over ERISA and states' rights may well make its way to the nation's highest court.

"I can almost predict with certainty this issue will end up in the Supreme Court — unless Congress changes ERISA in the next couple of years," he said.

Meanwhile, New Mexico is forging ahead. Two other health care plans also have been introduced in the Legislature this session.

Richardson's proposal, however, recently earned an endorsement that could help it garner support from the business community. The Greater Albuquerque Chamber of Commerce called it "the best structured legislation of those proposed."

Massachusetts ----------- the only state to require all residents to carry health insurance — has avoided a legal challenge thus far. Experts attribute that both to its small annual charge to employers — $295 per worker — and to the state's three-year effort to win over the business community before the law was passed.

"In Massachusetts, they worked politically to get everyone to buy in to this plan, which really puts a minimal burden on the employer," Schwartz said.

The same acceptance could happen here, he said, though with the possible unintended consequence of diminishing overall health coverage. If the fee required of employers is small enough, he said, many might drop their existing health insurance plans altogether and just pay the penalty.

Hyde disputed that notion.

"If an employer has already made the decision to provide health care, they won't stop doing that just because of this bill," she said. "They would give up the competitive advantage to attract the best employees that they have now."

Many experts say the best solution to the ERISA conflict — albeit perhaps not the easiest to accomplish — would be federal legislation of a universal health care plan.

"The lessons that have been learned are that although the states have been able to expand coverage, it's been very difficult to force employers to play in that game," Miller said. "If our desire is to get everyone covered, we're going to have to do it at the national level."

Miller says there is now "the political will in leadership and the consensus between Republicans and Democrats" to achieve federal action when the administration and Congress change next year.

But Hyde said New Mexico is not willing to sit idle until then.

"I think a lot of us hope the feds will do more about health care than they have in the last few years," she said.

"But we're not going to wait for that."